that in the statute of Wales, made at Rothelan, 12 Edw. I, the pleadings are directed to be carried on in that principality, "sine calumpnia verborum, non observata illa dura consuetudine, qui cadit a syllaba cadit a tota causa." The judgments were entered up immediately by the clerks and officers of the court; and if any misentry was made, it was rectified by the minutes, or by the remembrance of the court itself. When the treatise by Britton was published, in the name and by authority of the king (probably about the 13 Edw. I, because the last statutes therein referred to are those of Winchester and Westminster the second), a check seems intended to be given to the unwarrantable practices of some judges, who had made false entries on the rolls to cover their own misbehaviour, [*408 ] and had taken upon them by amendments and rasures to falsify their own records. The king therefore declares, (b) that "although we have granted to our justices to make record of pleas pleaded before them, yet we will not that their own record shall be a warranty for their own wrong, nor that they may rase their rolls, nor amend them, nor record them contrary to their original enrolment. The whole of which, taken together, amounts to this, that a record surreptitiously or erroneously made up, to stifle or pervert the truth, should not be a sanction for error; and that a record, originally made up according to the truth of the case, should not afterwards by any private rasure or amendment be altered to any sinister purpose. But when afterwards King Edward, on his return from his French dominions in the seventeenth year of his reign, after upwards of three years' absence, found it necessary (or convenient, in order to replenish his exchequer) to prosecute his judges for their corruption and other malpractices, the perversion of judgment and other manifold errors, (c) occasioned by their erasing and altering records, were among the causes assigned for the heavy punishments inflicted upon almost all the king's justices, even the most able and upright. (d) The severity of which proceedings seems so to have alarmed the succeeding judges, that through a fear of being said to do wrong, they hesitated at doing what was right. [*409] As it was so hazardous to alter a record duly made up, even from compassionate motives (as happened in Hengham's case, which in strictness was certainly indefensible), they resolved not to touch a record any more; but held that even palpable errors, when enrolled and the term at an end, were too sacred to be rectified or called in question: and, because Britton had forbidden all criminal and clandestine alterations, to make a record speak a falsity, they conceived that they might not judicially and publicly amend it, to make it agreeable to truth. In Edward the Third's time, indeed, they once ventured (upon the certificate of the justice in evre) to estreat a larger fine than had been recorded by the clerk of the court below; (e) but instead of amending the clerk's erroneous record, they made a second enrolment of what the justice had declared ore tenus; and (b) Brit. proem. 2, 3. (c) Judicia perverterunt, et in aliis erraverunt. Matth. West. A. D. 1289. (d) Among the other judges, Sir Ralph Hengham, chief justice of the king's bench, is said to have been fined 7,000 marks; Sir Adam Stratton, chief baron of the exchequer, 31,000 marks; and Thomas Wayland, chief justice of the common pleas. to have been attainted of felony, and to have abjured the realm, with a forfeiture of all his estates: the whole amount of the forfeitures being upwards of 100,000 marks, or 70,000 pounds (3 Pryn. Rec. 401, 402)—an incredible sum in those days, before paper credit was in use. and when the annual salary of a chief justice was only sixty marks. Claus. 6 Edw. I. m. 6. Dugd. Chron. Ser. 26. The charge against Sir Ralph Hengham (a very learned judge, to whom we are obliged for two excellent treatises of practice) was only, according to a tradition that was current in Richard the Third's time (Year-book, M. 2 Ric. III. 10, his altering, out of mere compassion, a fine, which was set upon a very poor man, from 138. 4d. to 68. 8d., for which he was fined 800 marks-a more probable sum than 7,000. It is true, the book calls the judge so punished Ingham, and not Hengham; but I find no judge of the name of Ingham in Dugdale's Series; and Sir Edward Coke (4 Inst. 655) and Sir Matthew Hale (1 P. C. 646) understand it to have been the chief justice. And certainly his offence (whatever it was) was nothing very atrocious or disgraceful; for, though removed from the king's bench at this time (together with the rest of the judges) we find him, about eleven years afterwards, one of the justices in eyre for the general perambulation of the forest (Rot. perambul. forest, in turri Lond. 29 Edw. I. m. 8) and the next year made chief justice of the common pleas Pat. 29 Ew. I, m. 7; Dudg. Chron. Ser. 32), in which office he continued till his death, in 2 Edw. II, Claus. 1 Edw. II. m. 19. Pat. 2. Edw. II, p. 1, m. 9. Dudg. 34. Selden, pref. to Hengham. There is an appendix to this tradition, remembered by Justice Southcote in the reign of Queen Elizabeth (3 Inst. 72; 4 Inst. 255), that with this fine of Chief Justice Hengham a clock-house was built at Westminster, and furnished with a clock, to be heard into Westminster hall. Upon which story I shall only remark that (whatever early instances may be found of the private exertion of mechanical genius in constructing horological machines) clocks came not into common use till a hundred years afterwards, about the end of the fourteenth century. Encyclopedie. tit. Horloge, 6 Rym. Fœd. 590. Derham's Artif. Clockmaker, 91. (e) 1 Hal. P. C. 647. left it to be settled by posterity in which of the two rolls that absolute verity resides, which every record is said to import in itself. (f) And, in the reign of Richard the Second, there are instances (g) of their refusing to amend the most palpable errors and mis-entries, unless by the authority of parliament. To this real sullenness, but affected timidity, of the judges, such a narrowness of thinking was added, that every slip (even of a syllable or letter), (h) was now held to be fatal to the pleader, and overturned his client's cause. (i) If they durst *not, or would not, set right mere formal mistakes at any time, upon [*410] equitable terms and conditions, they at least should have held, that trifling objections were at all times inadmissible; and that more solid exceptions in point of form came too late when the merits had been tried. They might, through a decent degree of tenderness, have excused themselves from amending in criminal, and especially in capital, cases. They needed not have granted an amendment, where it would work an injustice to either party; or where he could not be put in as good a condition, as if his adversary had made no mistake. And, if it was feared that an amendment after trial might subject the jury to an attaint, how easy was it to make waving the attaint the condition of allowing the amendment! And yet these were among the absurd reasons alleged for never suffering amendments at all! (k) The precedents then set were afterwards most religiously followed, (1) to the great obstruction of justice, and ruin of the suitors: who have formerly suffered as much by this scrupulous obstinacy and literal strictness of the courts, as they could have done even by their iniquity. After verdicts and judgments upon the merits, they were frequently reversed for slips of the pen or mis-spellings; and justice was perpetually entangled in a net of mere technical jargon. The legis lature hath therefore been forced to interpose, by no less than twelve statutes, to remedy these opprobrious niceties: and its endeavours have been of late so well seconded by judges of a more liberal cast, that this unseemly degree of strictness is almost entirely eradicated: and will, probably in a few years, be no more remembered than the learning of essoigns and defaults, or the counter-pleas of voucher, are at present. But to return to our writs of error. If a writ of error be brought to reverse any judgment of an inferior court of record, where the damages are less than ten pounds; or if it is brought to reverse the judgment of any superior court after verdict, he that brings the writ, or that is plaintiff in error, must (except in some peculiar cases) find substantial pledges of prosecution or bail: (m) to prevent delays by frivolous pretences to [*411] appeal; and for securing payment of costs and damages, which are now payable by the vanquished party in all, except a few particular instances, by virtue of the several statutes cited in the margin. (n) A writ of error lies from the inferior courts of record in England into the king's bench, (0) and not into the common pleas. (p) Also from the king's Dench in Ireland to the king's bench in England. It likewise may be brought from the common pleas at Westminster to the king's bench; and then from the king's bench the cause is removable to the house of lords. From proceedings on the law side of the exchequer a writ of error lies into the court of exchequer chamber before the lord chancellor, lord treasurer, and the judges of the court of king's bench and common pleas; and from thence it lies to the house of peers. From proceedings in the king's bench, in debt, detinue, covenant, account, case, ejectment, or trespass, originally begun therein by bill (except where the king is party), it lies to the exchequer chamber, before the justices of the common pleas and barons of the exchequer; and from thence also to the house of lords; (7) but where the proceedings in the king's bench do not first commence therein by bill, but by original writ sued out of chancery, (r) this (f) 1 Leon. 183. Co. Litt. 117. See page 331. (g) 1 Hal. P. C. 648. (h) Stat. 14 Edw. III, c. 6. (i) In those days it was strictly true, what Ruggle (in his Ignoramus) has humorously applied to more modern pleadings —'' in nostra lege unum comma evertit totum placitun.” (k) Styl, 207. (1) 8 Rep. 156 &c. (m) Stat. 3 Jac. I, c. 8. 13 Car. II, c. 2. (n) 3 Hen. VII, c. 10. 13 Car. II, c. 2. (v) Sec ch. 4. (p) Finch, L. 480. 16 and 17 Car. II, c. 8. 19 Geo. III, c. 70. takes the case out of the general rule laid down by the statute; (s) so that the writ of error then lies, without any intermediate state of appeal, directly to the house of lords, the dernier resort for the ultimate decision of every civil action. (6) Each court of appeal, in their respective stages, may, upon hearing the matter of law in which the error is assigned, reverse or affirm the judgment of the inferior courts, but none of them are final, save only the house of peers, to whose judicial decisions all other tribunals must therefore submit and conform their own. And thus much for the reversal or affirmance of judgments at law, by writs in the nature of appeals. (7) CHAPTER XXVI. OF EXECUTION. IF the regular judgment of the court, after the decision of the suit, be not suspended, superseded, or reversed, by one or other of the methods mentioned in the two preceding chapters, the next and last step is the execution of that judgment; or putting the sentence of the law in force. This is performed in different manners, according to the nature of the action upon which it is founded, and of the judgment which is had or recovered. If the plaintiff recovers in an action real or mixed, whereby the seisin or possession of land is awarded to him, the writ of execution shall be an habere facias seisinam, or writ of seisin, of a freehold; or an habere facias possessionem, or writ of possession, (a) of a chattel interest. (b) These are writs directed to the sheriff of the county, commanding him to give actual possession to the plaintiff of the land so recovered: in the execution of which the sheriff may take with him the posse comitatus, or power of the county; and may justify breaking open doors, if the possession be not quietly delivered. But, if it be peaceably yielded up, the delivery of a twig, a turf, or the ring of the door, in the name of seisin, is sufficient execution of the writ. Upon a presentation to a benefice recovered (s) 1 Roll. Rep. 264. 1 Sid. 424. 1 Saund. 340. Carth. 180. Comb. 295. (6) But now, by statute 1 Wm. IV, c. 70, and the common law procedure act, 1852, error upon any judgment of the queen's bench, common pleas or exchequer, must be brought in the exchequer chamber before the judges, or judges and barons as the case may be, of the other two courts, whence it again lies to the house of lords. (7) This appeal is taken away by 23 Geo. III, c. 21. See book 1, p. 104, n. 15. Since the union, however, a writ of error lies from the superior courts in Ireland to the house of lords. Before the union with Scotland, a writ of error lay not within this country upon any judgment in Scotland; but it is since given by statute 6 Ann. c. 26, s. 12, from the court of exchequer in Scotland, returnable in parliament. And see the 48 Geo. III, c. 151, concerning appeals to the house of lords from the court of session in Scotland. [In this chapter Sir W. Blackstone has considered only the modes by which a judgment may be reversed by writ of error brought in a court of appeal, and has stated that this can only be done for error in law. There is, however, a proceeding to reverse a judgment by writ of error in the same court, where the error complained of is in fact and not in law, and where of course no fault is imputed to the court in pronouncing its judgment. This writ is called the writ coram nobis, or coram vobis, according as the proceedings are in the king's bench or common pleas, because the record is stated to remain before us (the king), if in the former, and before you (the judges), if in the latter, and is not removed to another court. In this proceeding it is of course necessary to suggest a new fact upon the record from which the error in the first judg ment will appear; thus, supposing the defendant. being an infant, has appeared by attorney instead of guardian, it will be necessary to suggest the fact of his infancy, of which the court was not before informed. There is, therefore, no inconsistency in bringing this writ of error before the same judges who pronounced the judgment in the first instance, because they are required to pronounce upon a new state of facts, without impeachment of the former judgment on the facts they then stood.] in a quare impedit, or assize of darrein presentment, the execution is [*413] by a writ de clerico admittendo; directed, not to the sheriff, but to the bishop or archbishop, and requiring him to admit and institute the clerk of the plaintiff. In other actions, where the judgment is that something in special be done or rendered by the defendant, then, in order to compel him so to do, and to see the judgment executed, a special writ of execution issues to the sheriff, according to the nature of the case. As, upon an assize of nuisance, or quod permittat prosternere, where one part of the judgment is quod nocumentum amoveatur, a writ goes to the sheriff to abate it at the charge of the party, which likewise issues even in case of an indictment. (c) (1) Upon a replevin, the writ of execution is the writ de retorno habendo: (d) and, if the distress be eloigned, the defendant shall have a capias in witheriam; (e) but on the plaintiff's tendering the damages and submitting to a fine, the process in withernam shall be stayed,(f) In detinue, after judgment, the plaintiff shall have a distringas, to compel the defendant to deliver the goods, by repeated distresses of his chattels : (g) or else a scire facias against any third person in whose hands they may happen to be, to show cause why they should not be delivered: and if the defendant still continues obstinate, then (if the judgment hath been by default or on demurrer) the sheriff shall summon an inquest to ascertain the value of the goods, and the plaintiff's damages: which (being either so assessed, or by the verdict in case of an issue), (h) shall be levied on the person or goods of the defendant. So that, after all, in replevin and detinue (the only actions for recovering the specific possession of personal chattels), if the wrongdoer be very perverse, he cannot be compelled to a restitution of the identical thing taken or detained; but he still has his election to deliver the goods or their value: (1) an imperfection in the law, that results from the nature of personal property, which is easily concealed or conveyed out of the reach of justice, and not always amenable to the magistrate. *Executions in actions where money only is recovered, as a debt or [*414] damages (and not any specific chattel), are of five sorts: either against the body of the defendant; or against his goods and chattels; or against his goods and the profits of his lands; or against his goods and the possession of his lands; or against all three, his body, lands, and goods. 1. The first of these species of execution is by writ of capias ad satisfaciendum; (j) which addition distinguishes it from the former capias ad respondendum, which lies to compel an appearance at the beginning of the suit. And, properly speaking, this cannot be sued out against any but such as were liable to be taken upon the former capias. (k) The intent of it is, to imprison the body of the debtor till satisfaction be made for the debt, costs, and damages: it therefore doth not lie against any privileged persons, peers, or members of parliament, nor against executors or administrators, nor against such other persons as could not be originally held to bail. And Sir Edward Coke also gives us a singular instance, (7) where a defendant in 14 Edw. III was discharged from a capias, because he was of so advanced an age, quod poenam imprisonamenti subire non potest. If an action be brought against an husband and wife for the debt of the wife when sole, and the plaintiff recovers judgment, the capias shall issue to take both husband and wife in execution: (m) but if the action was originally brought against herself when sole, and pending the suit she marries, the capias shall be awarded against her only, and not against her husband. (2) Yet, if judgment be recovered against an husband and wife for the contract, (c) Comb. 10. (g) 1 Roll Abr. 737. (j) Appendix, No. (m) Moor. 701. (d) See page 150. (e) See page 149. (h) Bro. Abr. tit. 12. Moor. 767. (i) Keilw. 64. (f) 2 Leon. 171. (1) [That is, if it be stated in the indictment that the nuisance is still existing. If it does not appear in the indictment that the nuisance was then in existence, it would be absurd to give judgment to abate a nuisance which does not exist. 8T. R. 144.] nay, even for the personal misbehaviour (0) of the wife during her coverture, the capias shall issue against the husband only: which is one of the many great privileges of English wives. (2) *The writ of capias ad satisfaciendum is an execution of the highest nature, inasmuch as it deprives a man of his liberty, till he makes the [ *415] satisfaction awarded; and therefore, when a man is once taken in execution upon this writ, no other process can be sued out against his lands or goods. Only by statute 21 Jac. I, c. 24, if the defendant dies, while charged in execution upon this writ, the plaintiff may, after his death, sue out a new execution against his lands, goods, or chattels. The writ is directed to the sheriff, commanding him to take the body of the defendant and have him at Westminster on a day therein named, to make the plaintiff satisfaction for his demand. And, if he does not then make satisfaction, he must remain in custody till he does. This writ may be sued out, as may all other executory process, for costs, against a plaintiff as well as a defendant, when judgment is had against him. (3) When a defendant is once in custody upon process, he is to be kept in arcta et salva custodia: and if he be afterwards seen at large, it is an escape; and the plaintiff may have an action thereupon against the sheriff for his whole debt. For though, upon arrests, and what is called mesne process, being such as intervenes between the commencement and end of a suit, (p) the sheriff, till the statute 8 and 9 Wm. III, c. 27, might have indulged the defendant as he pleased, so as he produced him in court to answer the plaintiff at the return of the writ: yet, upon a taking in execution, he could never give any indulgence; for, in that case, confinement is the whole of the debtor's punishment, and of the satisfaction made to the creditor. Escapes are either voluntary, or negligent. Voluntary are such as are by the express consent of the keeper; after which he never can retake his prisoner again (7) (though the plaintiff may retake him at any time), (r) but the sheriff must answer for the debt. Negligent escapes are where the prisoner escapes without his keeper's knowledge or consent; and then upon fresh pursuit. the defendant may be retaken, and the sheriff shall be excused, if he has him again before any action brought against himself for the escape. (s) [*416] A rescue of a prisoner in execution, either going to gaol or in gaol, or a breach of prison, will not excuse the sheriff from being guilty of and answering for the escape; for he ought to have sufficient force to keep him, since he may command the power of the county. (t) But by statute 32 Geo. II, c. 28, if a defendant, charged in execution for any debt not exceeding 1007. will surrender all his effects to his creditors (except his apparel, bedding, and tools of his trade, not amounting in the whole to the value of 107.), and will make oath of his punctual compliance with the statute, the prisoner may be discharged, unless the creditor insists on detaining him; in which case he shall allow him 2s. 4d. per week, to be paid on the first day of every week, and on failure of regular payment the prisoner (0) Cro. Car. 513. (p) See page 279. (r) Stat. 8 and 9 Wm. III. c. 27. (q) 3 Rep. 52. 1 Sid. 330. (8) F. N. B. 130. (2) [There are many cases in which the defendant may be taken in execution after judgment, though he could not be arrested at the commencement of the suit; but it is an universal rule that, whenever a capias is allowed on mesne process before judgment, it may be had upon tho judgment itself. 3Salk. 286; 3 Co. 12.] ▲ great change has been effected in the law of England regarding imprisonment for debt since these commentaries were written, and now it is not allowed in actions on contracts, except in cases of fraud. See statutes 1 and 2 Vic. c. 110; 5 and 6 Vic, c. 116; 7 and 8 Vic. c. 96; and 32 and 33 Vie c. 62. (3) Taking the body of the defendant in execution suspends the lien of the judgment. Jackson v. Benedict, 13 Johns. 533. If the plaintiff gives the defendant, when in execution, permission to go at large, the judgment is discharged, and he will have no remedy either against the defendant or the sheriff. Blackburn v. Stupart, 2 East, 243; Yates v. Van Rensselaer, 5 Johns. 364; Poucher v. Holley, 3 Wend. 184. And this irrespective of the intention of the plaintiff, or of any violation by the defendant of any understanding on which he was discharged. Id. The same principle is applicable if one of several defendants is discharged by the plaintiff. Ransom v. Keyes, 9 Cow. 128. VOL. II.-33 257 |